Tommy says…

On 1 October 2009, a Supreme Court of the United Kingdom will replace the House of Lords as the court of final instance in most matters in the United Kingdom. This is a significant moment for the UK’s legal system. Constitutionally, it will mark the formal separation of the judicial arm of government from the executive and legislative (though functionally the separation has been in place for more than a century). The Law Lords will transfer to the new Supreme Court and become the justices of the Supreme Court. The first fresh appointment to the new court will be a replacement for Lord Neuberger, who is stepping down to become Master of the Rolls (to replace Lord Clarke, who is leaving the MR post to replace Lord Scott, who is retiring). New appointees will no longer be created life peers by reason only of their appointment to the Supreme Court – for lawyers around the Commonwealth, this marks the end of an era as they will stop talking about their Lordships in reference to new cases. The Supreme Court will be housed in the Middlesex Guildhall, which sits on Parliament Square, across from the Palace of Westminster and close to Westminster Abbey.

The Supreme Court’s website has been launched: http://www.supremecourt.gov.uk/index.html

Update: Read up on the workings of the UKSC at this (non-affiliated) blog: http://www.ukscblog.com/

Events, Law, Random facts

Enoch has kindly credited me in his excellent article about the clerkships process – I must admit that my contribution to that article consisted of about 5 words and one set of parentheses.

(For those not familiar with the context, the vacation clerkship program, run every summer, is the primary route of recruitment for mid-to-large-sized law firms in Sydney.)

These are excellent tips, though, and it’s recommended reading for all the keen baby lawyers out there. I thought, however, that I’ll also share a few of my thoughts on the clerkships process.

#1: Take it seriously, but not too seriously. Some would see the clerkships process as a single, crowded drawbridge across the chasm between struggling law student and high-flying corporate lawyer. Others don’t seem fussed about it at all. It’s important to have a realistic sense of how important the process is.

The clerkship process is important. For those whose parents are not judges or an important client of a major law firm, it is the best and – despite the many hurdles set in the path – the easiest path to a job at a commercial law firm. Unfortunately, the profession in Sydney places far too great a significance on a start at a commercial law firm. In some respects, a clerkship becomes a badge rather than what it should be – a chance to find out whether you and commercial law make a good couple. As a result, though there are many paths forward, and many paths to commercial law, if your interests swing that way, the clerkship is significant for a law student because it is the easiest way to earn that badge. If you do not put your best – and smartest – effort into the clerkships process, you may end up spending twice or three times the effort to score a graduate job – efforts subject to all the vicissitudes of the market. So start preparing early (ideally, a year early), talk to everyone, read everything, and carefully think through every decision you make in this process.

At the same time, it’s important to keep in mind that a clerkship is not the be-all and end-all of starting your career. There are many other paths to commercial law: as a graduate, after a further degree, as a qualified lawyer, or as a foreign lawyer. Remember, also, that commercial law is not for everyone. It is neither particularly remunerative in the first few years, nor does it offer work life balance as a matter of course. Does working on internationally significant commercial transactions for large corporations float your boat? If it doesn’t, happiness might be just an application (to the public or community sector) away. So don’t fret if the clerkships process and the competition seem a little daunting - there could well be a better path out there.

#2: A successful clerkship application must be balanced but stand out in some way. What does it take to get a clerkship offer? Some firms are rumoured to look only at marks; others supposedly only hire law society executives. In truth, all firms look for a combination of things. For the majority, being well-balanced is key. Academic results, work experience, extracurricular activities, quality of writing (in the application form and in the cover letter), as well as maintaining a good impression in the interview – all combine to make a successful application. To ensure an offer, however, an applicant should be stand-out in at least one area – some quality or experience that helps you to make it past the “maybe” pile into the “yes” pile. For those who are organised, it may be worthwhile cultivating that stand-out quality in the months or year before the clerkship process.

#3: Focus on a few firms, and try as many paths as possible. The clerkship application process is stressful, intense, and time-consuming; a quality application takes a lot of effort and time to perfect. It is prudent to apply for a good number of firms, but anything more than half a dozen will probably be a serious strain on your life. Anything more than a dozen is not for the faint-hearted. Applying for too many firms not only means more applications to draft, check, and customise – it also means that you may find it difficult to remember all the facts about each firm when you front up for the interview. A cover letter carrying the wrong firm’s name is almost certainly the biggest no-no. While not as dramatic, a bland, generic application does not impress the reader, either.

The second part of this item is that it’s a good idea to try as many things as possible. As Enoch mentioned, while a giant law firm might seem the perfect, glamorous workplace, it is not ideal for everyone – indeed, it is not ideal for most people. On the other hand, while a small firm might advertise its great atmosphere and work-life balance, you may find its work a little, well, less than exciting. The clerkship process is a chance to check out the options on offer, and you never know what you might find.

#4 Talk to as many people as possible. Before and during the clerkship process, talking to those who have gone before is a good way of avoiding pitfalls that others have encountered. During the clerkship process, talking to others can shed light on the realities of life and work with your potential employer. All the marketing talk thrown at you during the process are also best read when filtered through a competitor’s interpretation. Firm-organised cocktail parties and other events are a good chance to meet and talk to the lawyers in the flesh – they are primarily for the applicant’s benefit, and only secondarily for the firm to spot outstanding candidates. While it may seem an elusive prospect while you are stressed by the interview process, this information will come in handy when you do need to choose between competing offers. Talking to many people also has benefits beyond the process – whether or not you choose the particular firm in the end, the relationships you forge through the interview process can build or extend your network in the profession.

Finally – this is not strictly speaking a tip – keep track of which firm is offering the best food during the process. It’s something fun to focus on when your mind needs a break from the stress of the process!

______

Tommy completed vacation clerkships at two law firms in London and an Australian law firm in Melbourne, and completed his practical legal training at a community legal centre and a corporate general counsel’s office in Sydney. No, he doesn’t talk about himself in the third person as a matter of habit.

Law, Random thoughts, The Sydney Grind application, clerkship, law firm, vacation scheme

I set out to write a ‘brief’ casenote on my blog on this case a week ago, but almost inevitably it’s morphing into a 5,000 word paper. To spare my readers the pain of waiting a month to read something gargantuan, I’m posting up this condensed note. I’ll upload the full note as a document in due season.

On 22 April 2009, the High Court of Australia delivered its judgment in the case of IceTv Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (hereafter “IceTV“. The appeal by IceTV Pty Limited (“IceTV“) was upheld unanimously by a court comprising French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ. The court found that IceTV’s use of program title and time information originating from Nine Network Australia Pty Limited (“Nine“) did not infringe Nine’s copyright in its published programming schedules.

Significance of the case

The IceTV case has been a running saga in Australian copyright law for several years. The case is significant for several reasons. First, it is an important indication of the present High Court’s views on several open issues of copyright law which have been in flux in recent years. The bench which sat on IceTV encompass all but one (Bell J) of the present court, which has changed significantly in the last couple of years. Specifically, the case was a decisive statement of the court’s view on copyright’s protection of labour and time, versus the need for a “creative spark”, in compilations, an issue with increasing ramifications in the digital age. While the case considered this issue in the context of copyright infringement, and specifically the question of what constitutes a “substantial part” of a work, their Honours provided a strong indication of their views of the parallel issue in the context of subsistence of copyright.

Read more…

Law, Reviews, The Sydney Grind copyright, high court of australia, IceTV, intellectual property, Nine Network, Television

Clerkships – Training contracts – Vacation schemes – Jobs

The Hong Kong Law Fair will be coming to the University of Sydney this year, and it’s being coordinated by the Chinese Law Students Society. Register now to attend!

(Free plug =D i’m serving on the Old Men Committee for the fair.)

Events, Law careers, clerkship, graduate, hong kong, Law, sydney, training contract, vacation scheme

I passed by the Guardianship Tribunal of NSW in Balmain recently, and noticed an Indian restuarant on its ground floor – it had a massive sign saying “AIR”. Air? That’s a strange name for an Indian restaurant, I thought. Then I noticed the small writing: “All India Restaurant“, and I realised that it was a pun. Geddit? I’m guessing no.

Here’s how it works: “All India Restaurant” → A.I.R. → “All India Reports”, the most commonly used law reports series for Indian cases → law → Guardianship Tribunal. Geddit?

I like it because it’s so obscure

Law, Random thoughts, The Sydney Grind All India Reports, Guardianship Tribunal, pun, shop signs

Hillary Clinton accepts Obama’s offer of the Secretaryship (word?) of State. Reading through the list of appointees, I saw a lot of familiar names. If, like me, you are an interested amateur when it comes to US politics, the following might help.

Name: Hillary Clinton
Appointed: Secretary of State
You may remember her from: Married to former President Bill Clinton, first lady 1993-2001. Wellesley College, Yale Law School, parnter of Rose Law Firm. Senator for New York state since 2000.
Quote: “We are the president” – according to James B Stewart

Name: David Axelrod
Appointed: Senior Adviser
You may remember him from: Nothing, but he has an Autobot surname (a more introspective variation of Hotrod?) and a moustache that makes him look like he’s still living in 1984.

Name: Gregory Craig
Appointed: White House Counsel
You may remember him from: special counsel to Bill Clinton, defending him against impeachment. A reversible name. Yale law schoolmate of Hillary and Bill.

Name: Ron Klain
Appointed: Chief of Staff to the Vice-President
You may remember him from: Chief of Staff to the Vice-President (Al Gore). Supreme Court tipstaff.

Name: Tom Daschle
Appointed: Secretary of Health
You may remember him from: “Senator Tom Daschle (D)”, from his days as Senate Majority Leader. Wikipedia says of Daschle: “Daschle became a brother of Alpha Phi Omega”. The article does not explain how Daschele’s brother acquired such a quirky name, and whether the surname Omega indicates that said brother was adopted from Greece.

To be continued.

Events, Law, Random facts, The Sydney Grind hillary, obama, politics, US, wikipedia

Unfortunately, I am at my most prolific when I should be studying for exams. All four of them in the next four days, to be precise.

I happened upon the Wikipedia article on family dictatorships - and the related articles on dynasties and political families – and found it in a most unsatisfactory state. I’ve edited it, but it’s got me thinking. When does a political dynasty turn into a family dictatorship, and when is a family dictatorship a monarchy?

The first difference seems to usually involve a value judgment as to the quality of the political system. If the country is democratic, as in the US, then the passage of a position from father to son creates a “political dynasty”, while if the country is judged to be a dictatorship, then this is a family dictatorship. I say “value judgment”, because clearly this is not a question of law. Many “dictatorships” have very nicely whitewashed constitutions and hold regular elections. Often, the boundary can be hard to define. Is Singapore a political dictatorship or merely a political family?

The latter difference also is not one strictly of laws and institutions. In a monarchy, the crown passes within the family by force of law. However, some family dictatorships also enshrine their succession by laws designating the dictator’s heir.

It seems to me that the conditions for consituting a string of leaders from the same family as a family dictatorship are something like this:

1. No general law of hereditary succession. If a regime adheres to a general law of hereditary succession, then regardless of how the leadership is named, it is a hereditary monarchy and not merely a dictatorship. This is a maximum threshold. Anything falling short of this can be a family dictatorship. This covers a broad spectrum of institutional positions. A state may enact an ad hoc law designating the leader’s proginy as the legal successor; or it may hold elections (as to which, see below); or it may simply in practice treat the successor as the new leader. An example of the last is Kim Jong-il, whose position, the chair of the National Defence Commission, was simply declared to be the highest office of the land by government propaganda after the death of his father as the President. Since the younger Kim is not the President, he needed not be elected and is under no constitutional obligation to present himself to the electorate either.
2. Use of political, not “soft” power. A family dictatorship is first and foremost a dictatorship. This means that the regime enacts its policies, including succession policy, by the use of politcal powers as represented by instruments of state. This is a minimum threshold. Thus, a regime that holds free and fair elections, but in which one family, because of the informal power and influence accrued to it, continues to hold political office, is not a family dictatorship. Thus, no matter how many Bushes are elected to the Presidency, the US is not a family dictatorship. The Bushes would achieve disproportionate success because of their economic power and informal influence, rather than control over state apparatus. By contrast, Singapore is arguably a family dictatorship. The (indirect) hereditary succession was instituted through the regime’s control over the country’s political process, which itself is maintained by relaxed separation of powers, the enactment of laws that hamper dissent, and using the law to force dissidents into bankruptcy, jail, or exile.

Family dictatorships share attributes with other forms of government. One is the non-transparent selection of a successor. The selection and cultivation of a successor usually involves the interplay of forces within the regime, and can often be highly personal. It is often highly uncertain, with successors falling in and out of favour over a long period of time. To a greater or lesser extent, the same process is found in all but the most transparent of systems. The second is the “grooming” of a successor. In order to attain either authority within the regime, or a veil of legitimacy in the eyes of the public, the successor is carefully planted in various positions to attain experience, often with a cult of personality built up around that experience. Such a process is also found across authoritarian regimes and in hereditary monarchies. One scene which I found curiously apt during the Olympics was that Chinese Vice President Xi Jinping was chosen to meet with all the visiting Crown Princes – as heir apparents, the selection ensured reciprocity. (A vice presidency does not equal heirdom apparent in China. Since each president now serves for two terms, the first term vice president is a holdover minder from the previous administration, and the second term vice president is the designated successor.)

Since I can’t think of any particularly nice pictures to put in here, enjoy these two Youtube videos:

A day in the life of the Prince of Wales: Part 1 

and

Dear Leader Kim Jung-il is the People’s Inspiration

Law, Random facts, Random thoughts china, politics, prince charles, singapore, US, wikipedia

Is the Great Wall of China lawful at international law in light of the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall? Discuss.

Law, Random thoughts

The next time you get frustrated by the queues at your bank, or the high fees and charges on your account, spare a thought for Xu Ting (许霆), the Chinese man sentenced to life imprisonment because he used a malfunctioning ATM.

The story began in April 2006, when Xu Ting went to his bank’s ATM to withdraw 1000 yuan. Curiously, the balance docket showed that only 1 yuan had been deducted. Xu repeated the step and withdrew some 54,000 yuan. That night, he told his friend Guo Anshan, and the two of them went back and did it again. Xu withdrew a total of 175,000, while Guo took 18,000. Both then skipped town. However, a year later, Guo reported himself to the police and returned the money. The police caught Xu soon after, though his 175,000 yuan had been lost on bad investments.

Pausing the story for a moment, I should note that, initially, I had thought that this would not be a crime under Australian law, since this was not “taking and carrying away fraudulently”, as required by the crime of larceny. Upon further investigation, however, I discovered that (in NSW at least) the Crimes (Computer and Forgery) Amendment Act 1989 (NSW) amended the offence of “obtaining by deception” (see provision here) so that “deception” includes:

(b) an act or thing done or omitted to be done with the intention of causing:
(i) a computer system; or
(ii) a machine that is designed to operate by means of payment or identification,
to make a response that the person doing or omtiting to do the act or thing is not authorised to cause the computer system or machine to make

This appears to cover Xu’s case, and carries a maximum sentence of 5 years. Of course, the question of whether the criminal law should protect banks in such a case is controversial: see Davies JA in dissent in Mujunen (1993) 67 A crim R 350; King CJ in Kennison v Daire (1985) 38 SASR 404, and Smith, Criminal Exploitation of New Technologies AIC Trends and Issues in Crime and Criminal Justice No 93 (July 1998).

Let’s turn back to what happened in China. When Gao “gave himself up”, he was sentenced to one year in prison and a 1000 yuan fine for larceny. Xu was subsequently sentenced to life imprisonment by the Intermediate People’s Court of Guangzhou City for the crime of “larceny from financial institution – involving an extraordinarily large sum”, permanent loss of political rights, confiscation of all personal property, and repayment of all 175,000 to the bank.

That’s right, life imprisonment. News of the sentence was met with incredulity in China from legal experts and the online community. “A mistake by an ATM puts the customer in jail for life?” was a typical headline.

There were three lines of criticism. The first questioned whether the elements of the offence had been made out. It was questionable whether an ATM constituted a “financial institution”, and whether Xu’s actions constituted larceny, or illegally and secretly obtaining possession. Despite his apparent intention to obtain wrongful possession of the money, Xu simply walked into a bank branch as he was entitled to do, and using his real identity, withdrew money from an ATM, as he was entitled to do. Such a “larceny”, said Peking University professor of law He Weifang, would be an “incredible larceny”.

Secondly, many commentators pointed towards the actions of the bank. The bank did not realise anything had gone wrong for almost a day after the incident. Furthermore, the entire episode was due to the malfunctioning of the ATM. Tsinghua professor Xu Zhangrun commented that the bank should apologise to Xu, whatever happens. The bank failed to provide an adequate level of service. The primary relationship between the bank and Xu was a contractual one, and as creditor to a debtor, the bank should have sought civil remedies before involving instruments of state.

The third line, and the question no doubt in your mind right now, is how, as a matter of law, can a person who is given money by a bank – even if he had malicious intentions – possibly be sentenced to life imprisonment? The truth is, this was not entirely the result of a callous judge or an abusive court. The court’s hands, to an extent, were tied by the law and legal system. This analysis (in Chinese) from the People’s Court newspaper in 2003  sheds some light on the law behind the seemingly incredible result. The offence “larceny from financial institution”, under Art 264 of the Criminal Code (see an English translation of the provision here), has three levels:

1. where the amount is “relatively large”: three years’ imprisonment, hard labour, or control surveillance
2. where the amount is “very large”: three to ten years’ imprisonment
3. where the amount is “extraordinarily large”: life imprisonment or death

While the provisions are fairly flexible, what sealed Xu’s fate – once the court accepted that he had committed larceny against a financial institution – was that the Supreme People’s Court had defined what each of these terms meant. According to its advisory opinion, more than “30,000 to 100,000″ yuan [around A$4,500 to 16,000] was “extraordinarily large”. Once it had accepted that an ATM was a financial institution, and Xu’s “malicious withdrawal” constituted larceny, the Intermediate People’s Court was bound to find that the sum involved was “extraordinarily large”. Given the choice between life imprisonment or a death sentence, it chose the more lenient option.

This result illustrates three weaknesses in the Chinese legal system. One, the confusion between public morality and criminal justice. Fundamentally, the relationship was a contractual one. It is questioned whether this was a situation where the criminal court should have been involved. The reservations expressed about the current treatment in Australian criminal law of the same situation apply equally to the Chinese law.

Two, the protection of special interests. The provision relied upon here imposes especially harsh penalties for taking from a financial institution. In the days when the bank was an arm of the Chinese government, it would have been reasonable for the law to especially protect it from attack. Today, however, most if not all Chinese banks are commercial operations with little or no public policy role. The effect of the law – if it was correctly interpreted by the Intermediate Court – is to give special protection to the stronger party in an essentially commercial, contractual relationship by force of the criminal law.

Thirdly, what I see as the fundamental problem that caused this result is the fact that the intermediate court was bound in its sentencing by the Supreme People’s Court’s directive – a directive that was, in fact, 10 years old in 2007. During those ten years, China’s economy had grown at around 10% every year. While 100,000 may have been an “extraordinarily large” sum in 1997, it was not so to the same extent by 2007. The Supreme Court’s binding directive was effective legislation by stealth. While the legislature intended to leave flexibility in the law’s operations, the Supreme Court destroyed that flexibility. Whereas a superior court’s precedent in a common law system interprets the law and applies it to particular facts, the Supreme Court’s arbitrary figure setting has the effect of writing in statutory words where none existed before. Just like the National People’s Congress’s “explanation” of the Basic Law of Hong Kong, which sparked protests, this incident serves to highlight the continued struggle of China’s legal and political system as it grapples with the rule of law and a system of checks and balances.

Returning to Mr Xu – the news was not all bad. Upon appeal, the Superior Court of Guangdong handed the case back for retrial, on the grounds of “unclear facts, insufficient evidence”. Xu’s lawyer is currently arguing that the bank’s record keeping system was flawed, and thus there was insufficient evidence of the theft. One obstacle facing Xu, though, is that public opinion is now turning against him, after he gave evidence in court that his intention was to take the money “for safekeeping” on the bank’s behalf, words that his father denounced as “lies” on national television. The saga continues.

 Update: On March 31, 2008, the intermediate people’s court on retrial convicted Xu Ting as charged, and sentenced him to five years imprisonment and a fine of 10,000 yuan (about $1,500 Australian).  In court, when asked by the judge, Xu said he will not appeal. The court avoided the mandatory sentencing provisions of the Criminal Code using Art 63(2) of the Code, which gave courts a discretion to impose a sentence lower than the minimum, where approved by the Supreme People’s Court.

Law, Technology

Good old APEC – there’s nothing like a security lockdown on a city of 4 million to inconvenience and annoy its denizens. One wonders whether some Labor mole is whispering in the ears of the Department of Prime Minister & Cabinet to build more fences, disrupt more services, and enforce more psychotically draconian laws.

I saw The Wall the other day going to an interview. Basically every street block within shouting distance of Circular Quay and Macquarie Street is surrounded by a 3 metre tall concrete-and-barbed-wire fence, except for a tiny door for pedestrian access – one on each block, so you have to walk all the way around the block if you want to cross the street. Is it a desperate attempt by the NSW government to boost the state GDP? A contract for some minister’s nephew with a struggling steel products factory? Some deprived soul down at the RTA who really hates rounded street corners? I guess we’ll never know.

On the way from law school to uni today, I was stuck on a bus in the city for half an hour. The bus was stopped at an intersection by a cop on a motorbike. Now, anyone who knows anything about me knows that I am happy to be stuck on public transport for hours at a time for any worthy purpose – be it a duck that needs to cross the street or CityRail tracks that melt in the rain. So I would be happy, nay, honoured, to be stopped to allow the motorcade of a world leader such as the founder of computer maker Acer (official representative of Taiwan, apparently) to pass.

But no. We were stuck there for half an hour, because a bunch of Falun Gong loonies needed to march down to Belmore Park, marching band and all, and proclaim that the Chinese Communist Party eat Falun Gongers alive. If there is one protest I wish the police would use their new-found powers to stop, this has got to be it. Their claims are insane, but what is more insane is that Australians appear to be so readily willing to believe them. Transplanted to any other context (say, Russia), claims of a huge government live organ harvest scheme would be consigned to the dusty conspiracy theories corner of the used book store, or maybe the lunatic asylum.

The Chaser have been arrested and charged for driving a fake motorcade into the APEC security zone (using these security passes). The NSW police are declaring this a victory – they managed to detect the problem when the cars stopped and one member dressed up as Osama bin Laden got out of the car, after the motorcade had gotten through just two check points. Judging by this stellar performance, the strongest arguments for Australia’s withdrawal from Iraq should surely be that we are endangering the lives of coalition soldiers – if they will let Osama bin Laden through two check points, imagine who they’re letting through to coalition bases in Iraq!

Law